# Robert Wholey Co. v. Pennsylvania Human Relations Commission

> Commonwealth Court of Pennsylvania · April 2, 1992 · 146 Pa. Commw. 702

URL: https://www.frixlaw.com/law-library/cases/9763118

## Case

- **Full name:** ROBERT WHOLEY COMPANY, INC., Petitioner, v. PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** April 2, 1992
- **Citations:** 146 Pa. Commw. 702; 606 A.2d 982; 1992 Pa. Commw. LEXIS 274
- **Precedential status:** Published
- **Opinion:** Dissent by McGINLEY
- **Judges:** McGinley, Friedman, Narick
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763118

## How later opinions describe it (automated extraction)

- holding that complainant established prima facie case of retaliation where employer issued suspension within three months of the withdrawal of complainant’s initial complaint, reasoning that “[w]hen participation in a protected activity and the occurrence of an adverse employm…
- reasoning that “[b]ecause of the similarity in subject matter, the analysis from a Human Relations Commission case provides valued guidance” regarding a claim of discrimination in the form of retaliation under the former Civil Service Act

## Opinion text

*709 McGINLEY, Judge,
dissenting.
I respectfully dissent. The majority notes that when participation in a protected activity and the occurrence of an adverse employment action occur within close proximity in time, retaliation is inferred. However, in the present case, I believe that Marinacci’s withdrawal of the initial complaint on July 22, 1986, precludes evaluating her discharge under a retaliation standard.
The majority cites our decision in Consumers Motor Mart v. Pennsylvania Human Relations Commission, 108 Pa. Commonwealth Ct. 59 , 529 A.2d 571 (1987), for the rule that it is unlawful to discriminate against an employee because he or she filed a complaint with the Commission. Majority Opinion at 984. In Consumers Motor Mart , the employer told the complainant that since she had filed a complaint against her with the Commission, she no longer wanted the complainant working for her. Id., 108 Pa.Commonwealth Ct. at 66, 529 A.2d at 575 .
In the present case, the Commission inferred retaliation on Employer’s part based only on the proximity in time between the filing of the initial complaint and Marinacci’s discharge. As Former President Judge Bowman notes in his dissenting opinion in Pennsylvania Human Relations Commission v. Thorp, Reed & Armstrong, 25 Pa.Commonwealth Ct. 295, 361 A.2d 497 (1976), any action of any kind taken by an employer which in any manner alters the preexisting employer-employee relationship is a per se violation of Section 5(d) of the Act, 43 P.S. § 955(d). Id., 25 Pa.Commonwealth Ct. at 307, 361 A.2d at 503 . Such is the case before us. I do not believe that temporal proximity alone is sufficient for Marinacci to establish the causation element of a prima facie case of retaliation given the fact that she voluntarily withdrew her initial complaint two months before her termination. To hold otherwise sends a message that an employee in a discharge case can confer jurisdiction on the Commission and gain a great advantage simply by filing a complaint regardless of whether or not that complaint is spurious and even if it is subsequently voluntarily *710 withdrawn. It should also be noted that although the complaint alleges sex and age discrimination, the attorney for the Commission admitted that no probable cause for those charges was found and they were not litigated.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763118. Public record. Not legal advice.